yg No. 837

IN THE

UNITED STATES CIRCUIT GOURT of APPEALS

FOR THE NINTH CIRCUIT.

Mook M. SMITH, EPHRAIM P. ELLISON, ELIAS ADA®ISi JOHN W. THORNLEY, JAMES W. CHIPMAN, JAMES LOVE, ANTHON J. NEILSON, BENJAMIN R. MEEK, PETER A. NEILSON, JOSEPH 5S. NEILSON, HEBE Kae SMITH, HANS S. NEILSON, ANDREW ALLEN, ELLS= WORTH ALLEN, RILEY ALLEN, ISAAC DUNYON, AU- RELIUS FITZGERALD, HENRY CHIPMAN, BENJAMIN DANSIE. THOMAS MERCER, WILLIAM AYLETT, HEBER AYLETT, JOHN A. EGBERT, GEORGE DANSIE, FRANK DANSIE, WILLIAM CRANE, I. J. FREEMAN, JOSEPH OLSEN, Lb. PARKER.

Appellants, Us.

THOMAS G. LOWE, JOHN R. THOMAS, DAVID W. JONES;

D. H. ANDERSON, JOHN DOE, and RICHARD ROE,

Whose Other or True Names are Unknown,

Al ppellees.

APPELLANTS’ BRIEF.

Upon Appeal from the United States Circuit Court for the District of Idaho.

JAMES H. MOYLE, - BROWN & HENDERSON, FILED LINDSAY R. ROGERS,

OCT —1 1902 Attorneys for Appellants.

DAILY REPORTED PRESS, SALT LANE,

1 States Vircuit Court of Appeals for the Ninth Circuit.

Nox S37.

\

JESSE M. SMITH, EPHRAIM P. EL- ) LISON, ELIAS ADAMS, JOHN W. THORNLEY, JAMES W. CHIPMAN, JAMES LOVE, ANTHON J. NIELSON, BENJAMIN R. MEHR, PETER A. NEILSON, JOSIKPH S. NIELSON, HE- BER A. SMITH, HANS 8S. NEILSON, ANDREW ALLEN, ELSWORTH AL- LEN, RILEY ALLEN, ISAAC DUN- YON, AURELIUS FITZGERALD, HENRY CHIPNAAN, BENJAMIN DANSIE, THOMAS MERCER, WIL- LIAM AYLETT, HEBER AYLETT, JOHN A. EGBERT, GMHORGE DANSIE, FRANK DANSIE, WILLIAM CRANE, I. J. FREEMAN, JOSEPH R. OLSEN, LL. PARKER, ISAAC FITZGERALD, Appellants, Vs. THOMAS G. LOWE. JOHN R. THOM- Ss, DAVID Wo IONS D. H. ANDER SON, JOHN DOF and RICHARD ROK, Whose Other or True Names Are Un-

known, Appellees. J

TUE FACTS.

The issue in this case is, as to whether or not the State of Idaho ean, under the pretense of a quarantine law, com-

pletely exclude the sheep of non-residents of the State

4 Jesse M. Smith et al,

from grazing sheep on the unoccupied unclaimed lands of the Federal Government, herein referred to as the Public Domain, in that State; or in other words, can the live stock growers of the State of Idaho. with the aid of willing State Officials, secure for themselves a monopoly of the grass growing upon tlie public domain of the general govern.

ment in that State. The lower court held that the complaint of the plain-

tiffs and appellants did not state a cause of action, because the acts complained of were performed under and in pur- suance of the sheep quarantine laws of the State of Idaho. (Trans. p p. 24-30.)

The only question argued or considered or decided im the lower court, was whether the complaint stated a cause of action; and we wil! therefore, not presume to burden the court with an unnecessary discussion of any other question at this time.

The complaint contains {he facts. It alleges that the appellants are citizens of the State of Utah, and that the defendants are citizens of the State of Idaho. That the appellants are the owners of 72,500 head of sheep of the value of $350,000.00, which sheep they had theretofore for years grazed during the Sprmg, Summer and Fall of the year in the States of Idaho and Wyoming upon their own land, and upon the public domain or lands of the general government; and that in the winter time and the early spring, they ranged these sheep on the Desert in Utah and Nevada, but chiefly in the County of Box Elder, in the State of Utah, which Connty constitutes the greater part of the Northern boundary of the State of Utah. The prohib-

Lat

vs. Thomas G. Lowe et al.

ited Counties of Utah constitute the entire North boundary of Utah and South boundary of the State of Idaho. That at the time the action was _ filed, March 21st, 1901, these sheep were in said) Box Elder County near the Idaho line. and on the border of said Des- ert and were endeavoring to pass over said line into the State of Idaho for the purpose of obtaining pasturage on the said public domaim and upon the land of their owners im the State of idaho an] Wyoming. (Trans. pp. 3 and 4.)

That the sheep are wholly dependent upon the Win- ter snows for water while on said Desert, and in- said County, where they were at the time said action was brought. That if said sheep were detained where they then were, or prevented from passing on to their said Spring and Summer range in the States of Idaho and Wyoming, they would be destroved, and would die for the want of water and feed neither of which could he obtained where they were tnen, or where they had cowne from on said Desert, so that there was ne opportunity for retreat. (Trans. pp 2-10.)

The court will also take judicial notice of the fact that millions of sheep are grazed on said Desert in the Winter and are compelled to leive the same as soon as the snow has melted and enter the vallevs snd mountains on the North end Mast of said Desert during the time included within the proclamation herein referred to. That said Box lslder County is practically the sole gnteway for sheep wintered on the Desert and) summered in Idaho and Wyoming, and the time stated in said proclamation the

only time such sheep ean or will attempt to pass through

6 Jesse M. Smith et al,

this gateway. {lence the proclamation while limited to forty days is just as effectnal against transfering these sheep and other sheep so wintered from passing from said winter range to the Sprmg and Summer, range as if it covered the entire year, for the reason that said sheep would all be dead at the expiration of the forty days, if they were not transferred from their winter range during that time. (Trans pp. 4-5-10.) That if said sheep could by any practicai means be transferred to any other avail- able range than that included im the State of Idaho, which is the only range within the reach of these sheep and which is open to them, it would after the expiration of said forty days be wholly impractical and at an irreparable loss to transfer said sheep to their usual range in the State of Idaho. It will also be understood that sheep grazed on the Desert in Utah and Nevada are so grazing upon the pubhe domain and are cared for in herds of from two to three thousand, which sheep in the Spring are driven into the vaileys and mountains where grass and water can be found in the Spring and Summer, chiefty upon the publie domain; and that these sheep have certain seasons for lambing, and can only be lambed at certain places, and if large numbers of these sheep were attempted to he trans- ferred to new ranges, all of which are oceupied by other sheep, it would result in their being so crowded that gen- era! destruction would result therefrom. It is also a well known fact that the only outlet from the range on the Northern end of the Desert in Northern Utah and Nevada, is through Box Elder County and Idaho to Wyoming. (Gimansespp. 2; 3,4." lO-and™ de)

vs. Thomas G. Lowe et al. 7

That the appellants were and had been endeavoring to drive their sheep over ‘he said muble domain from the State of Utah into the State of !daho on their way to the States of Idaho and Wyoming, but were prevented from so doing by the defendants. (Trans. p. 6.)

That about one-third of these sheep were also on their way to the eastern market in the States of Nebraska, Mis- souri and Uhnois. ‘That it was necessary for them to have feed which according to the enstomary way cf raising sheep in that locality could only be obtained profit- ably by grazmg on the public domain. That if they were not prevented by the defendants. they would so transport their sheep from: the State of Utah through the States of Tdaho and Wyoming to the said markets, and that the bal- ance of said sheep would lamb in the States of Idaho and Wronung and be grazed therein during the summer, and without said prvilege appellants would be irreparably damaged. (Trans. pp. %, 4, 5, 6, 11, 12.)

The complaint further alleges that the Appellees and their confederates and their agents were so preventing the Appellants from driving theirsheepintothe State of Idaho in order to obtain for themselves and those associated with them the exclusive use of the said publie range in the State of Idaho and the grass growmg upon the lands of the government of ‘he Umited States therein. (Trans. pp. 6 and 11 )

That if the appellarts drive their sheep into the State of Idaho upon the said) public domain, the Appellees threaten to. and uness resirained, will foree said sheep

back where they then were upon said desert, where there is

8 Jesse M. Smith et al,

no feed or water. and in so doing wiil cause their ewe sheep. of which there are many, to prematurely lamb and die, to the damave of the appellants in the sum of $350,- 906.00, (Trans. pp. 3, 4, 6, 10. 14, 12.) end that for so fore- ing said sheep back on to said Desert, said defendants threaten to, and unless restrained from so doing, will take the same with force and appropriate them to their own use and benefit, without any warrant or authority therefor and without due. or any provess of law. (Trans. pp. 6, 7, 8, 9, NO yeddail2:.)

That the said alleged authority of the defendants for their acts is contained in Exlibits ‘‘A’’ and ‘‘B,’’ (Trans. pp. 15 and 18,) which exhibits consist of a legislative act of the State of Idaho against diseased sheep and a proclama- tion of the Governor of the State of Idaho.

That the facts alleged, and which are claimed to exist and which are referred to in said Proclamation as reasons for making said Proclamation are false, are groundless, and were given to said Governor, if he has received the saine, for the sole purpose of mdueing him to assist the Appellees, their associates and confederates in obtaining for themselves a monopcly of the grazing lands on _ the public domain of the United States. (Trans. 6, 9.)

That the said sheep of the appellants were free from scab and the districts referred to in said proclamation and through which said sheep had traveled and been grazed were free from scab and diease of all kinds. Trans. pp. 6, 8,'9 and 10.)

That the laws of the United States provide for the in-

spection and quarantine of such sheep passing from one

vs. Thomas G. Lowe et al. 9

state to another, and for the suppression of the diseases re- ferred to in said proclamation and law of the State of Idaho. That the Federal Government employs mspectors of sheep, who inspect sheep passing from one state to an- other, and determine whether such sheep are infected with disease and partienlarly the disease known asseab or seab- bie. That said inspectors had and were then inspecting said sheep, and that the appellants had caused said sheep to he so inspected in conformity with the laws of the United States; and that said inspection disclosed that both said sheep and the range upon wluch they then were and had been were free from disease, and particularly the dis- ease of seab or seabhies. (Trans. pp. 8 and 9.)

That the said defendants are financially irresponsible. (Trans. p. 7.)

The question presented then is as to whether the action of the Governor of the State of Idaho in making said proc- lamation is final and conclusive, and cannot be questioned irrespective of the motive or purpose behind it, or the gross wrong which is attempted, or may be attempted to be accomplished through the executive department of the

State, however unwise or vicious it may be.

ASSIGNMENT OF ERRORS.

Ist. That the Court erred in sustaining the said de- murrer interposed to the plaintiffs’ said bill m equity.

2nd. That the Court erred in dismissing the plain- tiffs’ said bill and refusing to grant the plaintiffs the re-

lief prayed for in said bill.

10 Jesse M. Smith et al,

ARGUMENT.

The appellants msist that the quarantine law in ques- tion and the proclamation of the Governor of Idaho, as construed and apphed and the acts of the appellees are in violation of the following provisions of the Constitution of the United States, to-wit:

1. That portion of Sec. 8, Art. 1, to-wit: ‘‘To reg- ulate commerce among the several states.’’

2. See. 2, Art. 4: ‘‘The citizens of each state shall be entitled to all privileges and immunities of citizens of the several states.’’

3. The following portion of Fourteenth Amendment to the Constitution: ‘‘No state shall inake or enforce any Jaw which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due pro- cess of law; nor deny to any person within its jurisdiction

equal protection of the law.”’

I.—REGULATION OF COMMERCE.

The most mportant question presented, and asked to be determined by the Appellants, 1s as to whether the Statute and Proclamation in question, as construed, and the action alleged to be exereised thereunder, is a just and lawful exercise of State power, or whether they are, as eontended by Appellants, a mere subterfuge and round- about means adopted to invade the domain of Federal

Authority; and if it be such subterfuge, should or could

vs. Thomas G Loice et al. et

the lower court inquire into, and determine whether the Executive officers of the State were acting in reason and goud faith, and not in violation of the Constitutional right of the Appellants.

The lower court seems to have acted upon the theory that it was without jurisdiction to inquire into the good faith of the State officers or the reasonableness of their action. That the court could not go behind the Statute of the State and the Governor’s Proclamation. That they were final and conclusive, and bevond the reach of Fed- eral or other judicial action. But while the lower court appears to follow the above view, it at the same tine, admits that the grossest of wrongs may result therefrom and Inter-state commerce be unjustly interfered — with and that the decisions of the Supreme Court of the United States have declared the law to be, ‘‘that under the guise of either a proper quarantine or mspection law a regu- lation of Commerce will not be permitted. Any pretense or masquerade will be disregarded, and the true purpose of a statute ascertained. It ts the Character of the Civ- cumstances which gives or takes from a law or regulation of quarantine a legal quality.’ (Trans. pp. 28, 29, 30.) Thus the trial court quotes the law correctly, but ignores it in entering Judgment.

That the court has Jurisdiction to inquire into the facts, and determine whether the quarantine law and regu- lations and action thereunder are unjust. or a mere pre- tense or masquerade under which to regulate comnnerce and defect the rights of the Appellants, we quote from

and cite the following cases :

R2 Jesse M. Smith et al,

‘In all cases of this kind it has been repeatedly held that, when the question ig raised whether the State statute is a just exercise of State power, or is intended by round- about means to invade the domain of I’ederal authority this court will took into the operation and effect of the statute to discern its purpose.’’

Compagnie Francaise vs. The State Board of Health, La.

No. 16, July 15th, 1902, page: 812; “eae vaneed Sheet of the U.S. Sup. Ct. Rep’s. Law Ed.;

46 Law Ed. of the U. S. Rep. 816;

Smith vs. St. Louis & South-western R. Co., 181 U.S. 248, 257;

Henderson vs. New York, 92 U.S. 259, 265;

Hanibal, St. Joe R. R. Co. vs. Husen, 93 U. S. 465;

Chy Lung vs. Freeman 92 U.S. 275;

State vs. Duckworth (Idaho) 51, Pace. Rep. 456;

Canon vs. New Orleans 20 Wall. 577.

In Smith vs. St. Louis and South-western R. Co., 181 U.S. 257, the court said, ‘‘What, however, is a proper quarantine law—what a proper imspection law in regard to cattle—has not been declared. Under the guise of either a regulation of commerce will not be permitted. Any pretense or masquerade will be disregarded, and the true purpose of a stutute ascertained.’’ Such being the law it

is difficult to understand why the trial court, in view of the

us. Thoinas G. Lowe et al. WG

facts alleged, should have had any doubt about the suf- ficiency of Appellants’ complaint.

It appears, however, from the written decision of the trial court (Trans. pp. 25, 26 and 27,) that before passing on the demurrer, a hearing was had and evidence taken on the application for a temporary injunction, and that at the hearing the court regarded the complaint as suf- ficient, and found that the sheep were not diseased, and that the forty days restriction was unnecessary, as two dippings of the sheep for scab about ten days apart was sufficient to completely destroy the disease and the par- asite from which it arises. hat the sheep should be per- mitted to pass into the State of Idaho, and that the Ap- pellees should be restrained from mterfering with the sheep, but that since the commencement of the action and said hearing, and prior to formerly passing on said de- murrer, two decisions of the Supreme Court of the United States had been rendered, namely, (Rasmussen vs. Idaho 181 U. S. 198 and Smith vs. St. Louis and South-western R. Co., Id. 248), which decisions changed the opinion, or the action of the court. The lower court said, in rendering its decision, while ‘‘these decisions do not say that a Fed- eral Court may not, in such cases, entertain jurisdiction for the purpose of determining the good faith both of the law and its enforcement, and while in the one ease it 1s said that such a law cannot be made a mask to shield a violation of the inter-state commerce coustitutional pro- vision, i both there is an intimation that when the law upon its face is one to prevent the spread of disease in the

State, the State officers may be relied upon to, m good

14 Jesse M. Smith et al,

faith, enforce it im justice to all. At any rate, in the two cases above examined, the laws and their enforcement by the State officers were sustained, and such Jaws and such enforcement thereof were as strong in exclusion of foreign stock as is the law in the case under consideration. It must follow, therefore, that this law may be enforced by the State officers; that the complaint does not state a cause of action which this Court may take jurisdiction, and the demurrer thereto 1s sustained.’* (Trans. pp. 29, 30.) Thns the court was of the opinion that the law was against the Appellees, but said decisions protected them.

It thus appears that said decisions were controliing m the judginent of the trial court, and in effect determined that no matter what the wrong might be, so long as it mas- queraded under the guise of a quarantine law of a State it cannot be investigated, ov the action of State officers there- under be defeated, because it is conclusively presumed and cannot be questioned, that State officers may be relied upon to, in good faith, enforce quarantine regulations, no matter what they may be, so long as they are declared by executive officers to be intended for the good of the State and the suppression of disease.

This conclusion is in direct opposition to every de- cision on the question, and no decision can be found to sus- tain any such a conclusion, but on the contrary the de- cisions above, including the decision to which the lower court referred, announces a contrary doctrine.

In the case of Rasmussen vs. Idaho 181 U.S. 198, the only question raised was whether the uneoustitutionality

of a law of Idaho was disclosed on its face, while it au-

vs. Thomas G. Lowe et al. 15

thorized a similar proclamation. The question of good faith, or the unconstitutional applieation of the law, how- ever, was not raised. It must be borne in mind, too, that the Supreme Court of the United States subsequently and at the same term said, in Smith vs. St. Louis & South-west- ern R. Co. 181 U.S. 248, that ‘‘ What, however, is a proper quarantine law—what a proper inspection law in regard to eattle—has not been declared’’ by this Court. That ques-, tion had not been considered by that court.

And its last expression on that question is as follows: “Tt will be time enough to consider a case of such sup- posed abuse when it is presented for consideration.”’

Campagnie Francaise vs. State Board of Health 46 Use. Hid) Si.

Sueh is also the law as construed in State of Idaho vs. Duekworth, 51 Pac. Rep. 456.

It is clear that this question was never presented to the Supreme Court, and unless it disregards all its former decisions, no violation of the Constitution will be per- mitted under the mere guise of a quarantine law.

In the ease of Smith vs. St. Lowis & S. W. R. Co., an entirely different condition exists There the States of Texas and Louisiana are involved, and it is a notorions fact that all live stoek in parts of those States are subject to a disease which is common, and epidemic, especially im certain localities. That it then existed or was believed to exist in such a way as to require quarantine regulations, and of that fact the Court took judicial notice. But im that ease the absence of the good faith of the law or proclama-

tion or the officials or their action was not established, if

16 Jesse M. Smith et al,

questioned The sole question involved was the constitu- tionality of the law itself, and the order of the Sanitary Commission providing for the quarantine, with no pre- sumption of good faith rebutted. That such is the ease, is clearly disclosed, for the Court said, ‘‘It is urged that it does not appear that the action of the live-stock Sanitary Comunission was taken cn sufficient information. It does appear that it was not, and the presumption which the law attaches to the acts of public officers must obtain and pre- vail. The plaintiff in error relies entirely on abstract right, which he seems to think cannot depend upon any circumstances, or be affected by them. This is a radical mistake. It is the character of the circumstances which gives or takes from a Jaw or regulation of quarantine a legal qualitv. In some cases the circumstances would have to be shown to sustain the quarantine, as was said in Kim- mish vs. Bell, 129 U.S. 217, 32 L. Ed. 693, 2 Inters. Com- Rep. 407, Sup. Ct. Rep. 277. It is for the Breach of this alleged duty he sues; yet it no where appears from the rec- ord that before the quarantine line in question was estab- lished the sanitary commission did not make the most careful and thorough investigation into the necessity therefor, if, indeed, that inatter could in any event be in- quired into. So far as the record shows every animal of the kind prohibited in the State of Louisiana may have been actaully affected with charbon or anthrax; and it 1s conceded that this is a disease different from Texas or splenetic fever, and that it is contagious and infectious and

of the most virulent character.’’

vs. Thomas G. Lowe et al. V7

From the foregoing it is apparent that no attempt even was made to prove that the alleged facts warranting the quarantine did not exist, or that the officers were not acting in good faith. How tins case could have inisled the lower court. as it seems to have done, is hard to under- stand. In State vs. Duckworth, just cited, the Court rec- ognized the distinction we make when it said, page 458, ‘In other words, the sheep of our neighboring states are no more the natural habitat for seab, or other imfectious diseases to which sheep are subject, than are Idaho sheep. Those facts distinguish the case at bar from those cases tn which the constitutionality of laws aiming to protect the cattle of certain states from the ravages of the disease com- monly known as ‘Texas fever’ is involved. It is recog- nized that Texas cattle are the natural habitat for said dis- ease, and if they are excluded trom a state, as well as cattle that have come tm contact with them, the disease is wholly prevented. It is thus shown that that class of cases is dis- tinguishable from the case at bar. The enactment of a sim- ilar statute to the one under consideration, by the states of Wyonnng, Nebraska, Iowa and Illinois, would result in closing the market of Kansas City, Omaha and Chicago, to the sheep growers of our state.’’

In Grimesws iddge (Mo ) 28 SeW. Repy 756, the court said it would ‘‘take judicia! notice of the fact that Texas Cattle have some contagious or infectious disease communicable to native cattle.’’

The Appellants rely on the bad faith of the officers and the total absence of facts warranting any quarantine

regulation. It is conceded in the absence of an answer to

18 Jesse M. Smith et al,

the complaint that both the sheep in question and the pro- hibited range from whi. they came were free from dis- ease, and even the lower court says that two dippings ten days apart is sufficient to exterminate the disease against which the quarantine was laid. namely, scab or seabhies. (anes pp. 6, 9, 10, Le)

The Supreme Court of Idaho had also previously de- eided that two dippings for seab, ten days apart, is suf- ficient to destroy the disease. That it breaks out in sores within ten days after exposure, and two dippings cures it. That it is easy to discover the existence of the disease.

State vs. Puckworth, 51 Pace. Rep. 456, 458.

The Proclaination entirely excluding non-resident sheep lasted forty days, in spite of the fact that ten days quarantine was sufficient.

It is also hkewise admitted that the Idaho quarantine regulation is solely intended for the purpose of unlawfully enabling the Appellees and their confederates to monopo- lize and exctusively use and graze their sheep on the grass growing on the unclaimed lands of the United States. (Trans. p. 6.)

If this be true, and it is not yet challenged, what could be a more unjustifiable ard manifest violation of Constitu- tional rights, say nothing of official decency?

The quarantine regulation in question can scarcely be said to be a pretense or masquerade, it is practically on a par with the action of the bold highwayman. The lower court certainly overlooked, or did not take this undenied

allegation seriously.

us. ioregs G, rome al. 19

The important question then is, does the Appellants’ Bill allege, that the Law or the Proclamation, or the Law and Proclamation as construed and applied, disclose a ‘just exercise of State power, or is it a mere pretense and round-abount means of invading the domain of Federal au- thority?’

It must be conceded that the latter conditions exist if the allegations of the complaint are true, and as they are not denied, they cannot be controverted in this court.

While the lme between sueh a constitutional and un- constitutional inter-state quarantine has not been expressly and technically determined, the Supreme Court of the United States and some of the State Courts have, in a va- riety of cases, declared less offensive and exclusive quar- autine regulations unconstitutional.

We maintain the law to be that a quarantine or police regulation, which prohib:tes or unnecessarily restricts the transportation of live stock into a state, except where the same is in fact a necessary quarantine regulation, is an un- constitutional interference with inter-state commerce, and such is the case, however much it masquerades under the mere guise or false pretense of a necessary quarantine reg- ulation.

Hani hgileetite Jp lie Couvs. Idusen 95 Wea. AGB at Died dy, 527. State vs. the Constitution 42 Cal. 578. Bangor ws: Smithe€S Me 4226 13 la Kaw. 686, 22 Atl. 3879. The Huasen case is recognized as the leading case on

the subject. It has never been eriticised or reversed, but

20 Jesse M. Smith et al ji

lias been fol'owed and cited ina long line of Gases, for a list of which see 9 Roses Notes of U.S. Reps. 287 to 295.

Tf the regulation does in fact unnecessarily interfere with commerce, or is a quirantineregulation only in name, and is intended in fact to exclude or interfere with inter- state commerce, or to secure an undue advantage in favor of one class of citizens as against another, even though it is declared by state officers to he a necessary quarantine regulation, its true purpose and effect wil! be discovered bv judicial inquiry, and if unlawful, defeated.

Henderson vs. New York 92 U.S. 259.

State vs. Duckworth (Idaho) 51, Pae. Rep. 456.

Chy Lung vs. Freeman 92 U.S. 275.

Hanibal St. J.R Ro Co, vs! HusenSa UG: 465.

Tn State vs. Duckworth, just cited, the Supreme Court of Idaho held a less objectionable law unconstitutional, and said:

‘‘Under the guise of inspection and quarantine, said sections place unnecessary burdens and restrictions upon bringing sheep into this state for any purpose whatever, or transporting them through the state to the markets of the Kast, and make unnecessary and prejudicial discrimina- tions against sheep whose owners may desire to bring them into the state; and they are repugnant to the provis- ions of the federal constitution. Said sections are void for that reason.’’

We have previously shown that the Idaho quarantine

regulations, while only lasting forty days, were just as ex-

vs. Thoinas G. Lowe et al. 21

elusive as if they had lasted for twelve mouths. (Trans. pp. 3, 4, 5, 6, 8, 9, 10.) In this conection we call special attention to the following sentence contained on page 10 of the Transcript, to-wit :

“That sheep are transported from said alleged in- fected and prohibited districts only during the said prohib- ited season, and through the said prohibited counties of Utah.’’

While some eases hold that a state can enforee rea- sonable quarantine and inspection laws, necessary for the protection of the property of its citizens, even though it may to some extent imterfere with inter-state com- merce, no court has held that it ean prevent the transporta- tion of live-stock, or other subiects of ecommerce beyond that which is actually and im fact necessary for its self protection.

Hanibal.& St.J. Rh. Co. vs. Husen 95 U.S. 465.

Brimmer vs. Rebman, 138 U.S. 78.

Seott vs. Donald, 165 U. S. 58, and cases cited therein.

Grimes vs. Eddy, 26 L. R. A. 638.

Bowman vs. Chieago & N. W. kh. Co. 125 U. S. 488.

In Hani bal..& Sie). R. Gé.ows. diusen; 95, U1. &. 466, 471, $73, a Missouri statute, was held unconstitutional. It provided that no Texas, Mexican or Indian cattle, not kept the entire previous winter in the State of Missouri,, should he driven ov otherwise conveyed into or remain in any

county of that state between the first day of March and the

22 Jesse MM. Smith et al,

first day of November in each year. In that case the court adinitted, however, that a statute would be constitutional, which excluded property dangerous to property of citizens of the state, such, for an example, as animals having con- tagious or infectious diseases. The decision was placed on the ground, that while contagious or infectious aninals could be excluded, the state could not, under the claim of exercising its police power, substantially prohibit foreign or inter-state commerce. The Missouri statute was also held unconstitutional because it went beyond the neces- sities of the case, it having been drawn so as to practically exclude Texas, Mexican or Indian cattle from the state, whether free from disease or not. or whether they would or not injure the inhabitants of the state. In that case it was also claimed in behalf of the Missouri law, that it was valid as a quarantine or inspection law, as its purpose was to prevent the introduction of cattle afflicted with con- tagious diseases. But the court pointed out that no pro- vision was made for the actual inspection of the cattle so as to secure the rejection of those only that were diseased. The court held that the statute was void as a plain intru- sion upon the exclusive domain of Congress. Both the let- ter of the decision and the reason upon which it was based applies equally to the Idaho law. The decision referred to has been quoted and referred to approvingly in a great number of cases since, and in no ease has it been overruled or criticised.

In Bowman vs. Chicago R. Co., 125 U. 8. 488, the court held a state law prohibiting the importation of liquor

without a certificate that the consignee wasalicenseddealer.

vs. Thomas G. Lowe et al. 28

was not an inspection law, but a regulation of commerce and unconstitutional.

A burdcn or restriction imposed by a state upon inter- state commerce is uot to be sustained simply because the statute nuposing it applies alike to the people of all states, including the people of the state enacting such statute.

Seott vs. Donald 165 U. S. 98 and eases

therein cited.

LQU AlwRRBEEPGES DENIED:

The Proclamation, wlile exeluding absolutely the driving of sheep into the state, and which is the usual means of transporting sheep in the locality in question, permits and gives at the same time a special privilege to the railroad companies to transport sheep from the pro- hibited and alleged infected districts or elsewhere into the state, and such sheep need only be quarantined for fifteen days, and that after they are in the state. (Trans. p. 17. This recognizes a fifteen days quarantine as sufficient to stamp out the disease.

This 1s clearly a violation of the Fourteenth Amend- inent to the Constitution of the United States. Its mani- fest purpose is to hold the good will of the railroad eom- panies, and to prevent their joining in a contest against the state and its favored stockmen.

But whether such is its purpose or not, it is an unwar- ranted discrimination in favor of the business of the rail- road, and the sheepmen who are able or so situated that

they can transport their sheep into the state by rail.

24 Jesse M. Smith et al,

The lower court completely overlooked this matter in its decision at least. ,

If, as alleged and admitted, the quarantine is estab- lished for the purpose of securing free grass for Idaho stockmen (Trans. pp. 6. 9, 10) then it is an unconstitu- tional discrimination.

TAKES PROPERTY WITHOUD DUCE PROCESS Gr LAW.

Said law provides that whenever the Governor’s proe- Jamation prohibits sheep from entering the state, irre- spective of whether they are diseased or not, ‘‘it shall be the duty of the State Sheep Inspector, or any of his depu- ties, to drive or transport sheep coming into the state, in violation of said proclamation, back across the state lne from which they came, using all necessary force in so do- ing; provided, that the said sleep inspector or his depu- ties may employ such assistance as may be necessary for the enforcement of the provision of this act; and the costs of such deportation shall be a hen upon said sheep; pro- vided, that if the fine and costs in this act provided shall not be immediately paid, the deputy sheep inspector shall retain a sufficient number of said sheep to pay such fine and costs, which sheep shall be sold to pay the same, by the deputy sheep inspector. in the same manner as_ pro- vided by law for the sale of personal property to satisfy a judgment, and for such services the deputy sheep in- spector shall receive and retain such fees as is allowed sheriffs for like services to be taxed as costs.’’ (Trans. p. 19.)

ves. Thomas G. Lowe et al. 25

Said act further provides 1s follows: ‘‘Any person failing or refusing to assist said deputy sheep inspector, as in the preceding seetinn provided, shall be punished in a sum not exceeding $1,000.00.”

The Appellees threatened the appellants that if they drove their said sheep intothestatethat they wouldemploy an army of men, if necessary, to drive them back, and re- tain so many of the shecp as was necessary to pay the ex- pense of so keeping said sheep oul of the state. And Ap- peHants allege that if not restraimed, the Appellees would so act. (Trans. pp. 6, 8, 11.) No provision was made in this law for determining what the lawful costs were, ex- cept that upon a sale of the sheep by the inspectors they should make their charges the same as those allowed sher- iffs. No writ or other authority is required to take the sheep, except this law. No provision is made to regulate the charges for driving the sheep out of the state. The in- spectorsarethereby authorizedto take as many men as they eonelude is necessary. There is absolutely no limitation on the expense that may be incurred, excepting costs of sale. The inspectors are evidently authorized to enter judgment in their own minds or elsewhere as tliey please, fix the amount to be charged, and that becoines a Judgment lien on the sheep, and if it is not paid (and no time is fixed within which to pay, and no provision is made for notice or demand to be given or made), the inspector sells the sheep the same as he would if he was sheriff and had a lawful writ authorizing the sale.

No opportunity is given to retax the costs or to contest

the judgment of the inspectors: in fact, it is not even nec-

26 Jesse M. Smith et al,

essary for the trespassing sleep owner to know what the judginent is, or how it is to be determined. He is denied his day in court. He must promptly pay whatever 1s de- manded. The right of appeal and trial by jury is ignored and totally denied. And the judge may be an avowed enemy and opponent.

An army of citizens of Idaho are to be employed in foreing back the invading sheep (Trans. pp. S, 11), and they are to he paid out of the proceeds of the sale of the sheep before any judgment is made by any judicial tri- bunal, known to the law. Even the Constitution and laws of Idaho confine the exercise of Judicial functions to cer- tain courts not including sheep inspectors, many of whom ean searcely read the law or anything else. To know a seabby sheep when they see it is their only qualification.

Jf this is not an atteinpt to take property without due process of law, what wouid be?

As alleged in the complaint, the Appeliees and their confederates threaten to attempt to carry out the pro- visions of said law, and will, unless restrained. (Trans. pp. ies)

The law authorizing the quarantine, seizure and con- fiscation of sheep as stated above, is in violation of the con- stitution of Idaho, which limits the exercise of judicial functions to certain courts, neither of which can possibly include the State Inspectors Court or that of any of his

deputies.

See. 2, Art. V, Constitution of Idaho.

ve. Thomas G. Loice et al. 29

CONFLICTS WITH FEDERAL LAW,

While the states may be permitted to protect their do- mestie cattle from contagious diseases, they cannot dis- place or duplicate the regulations provided by Federal legislation. Congress, ii so far as it acts in matters of fecting inter-state commerce, is supreme. Congress hav- ing acted and Federal officers, m pursuance of an act of Congress, having inspecied the sheep in question and the range from which they came, and having found the same free from slisease, and certified to the fitness of the sheep for inter-state commerce, (Trans. pp. 8, 9), by what anthority or process cana state inspector at the same time and place find the same sheep diseased and not fit for inter-state commerce, and prohibit such sheep from crossing state lines, on the ground that they are diseased or the range from which they came is diseased, and this, too, m the face of the fact that it is coneeded that the sheep and range in question are free from disease.

That Congressional action does supercede state quar- antine regulations and is supreme.

See Missouri Nh. & T. R. Co. vs. Haber, 169 US. 613, and cases therein cited.

State vs. Duekworth (Idaho) 51 Pac. Rep. 456.

Gibbons vs. Ogden 9 Wheat. at page 210.

endetson ¥S. Mavor 92 U7. 3. 272.

Campagnie Francaise vs. State Board, 46 VU. e loelod, S15,

28 Jesse M. Smith et al,

Congress has provided inspection and quarantine reg- ulations for inter-state transfer of live stock, including sheep.

sections 6, 7, 8, 9, of the Act of Congress of May 29th, 1884 (23 Stat. at L. 31, Chap. 60.)

Sections 1, 2, 3, 5, of the Act of March 3rd, 1891, (26 Stat. at L. 1044, 1049 Chap. 5-4, lentitled an Act to pro- vide for the Inspection of live stock, etc., when the subject of inter-state commerce.

An Act making apropriations for the Department of Agriculture of March 2, 1895.

AG. of Feb. 9, 1889. (20 Stat. aiel. 659, Chay eae

Act of March 2, 1859. (25 Stat. at L. 835, 840, Clap. ia.)

Act making Apropriations for the Agricultural de- partment of July 18, 18s8, (25 Stat. at L228, Chap agai

Rules and Regulations for tke Suppression and Ex- tirpation of Contagious, Infectious and Communicable Diseases Among the Domestic Animals of the United States. Issued by the Commissioner of Agriculture, April 14, 1887, page 32, Bulletin No. 9, U. 8S. Department of Agriculture of the Bureau of Animal Industry.

Order of the Secretary of Agriculture dated Decem- ber 13, 1895, entitled ‘‘Tegulations Prolubiting the Trans- portation of Animals Afficted with Hog Cholera, Tuber- culosis, or Sheep Scab.’’

Order Secretary of Agriculture dated June 18, 1897, entitled ‘‘Transportation of Sheep Affected with Scab- bies.’’

Order of the Acting Secretary of Agriculture, dated

vs. Thomas G. Lowe et al. 29

July 20, 1899, entitled ‘‘Regulations Concerning the Dip- ping of Sheep Affected with Scabhies.’”’

It is true that the Haber case just cited upheld a State statute providing that a railroad company was Hable for all dainages caused by bringing diseased cattle in contact with other epttle, even though in so transporting such dis- eased cattle the regulations of the Federal Government were comphed with.

But in the Haber case the court said, in discussing the Ilusen ease, that the Kansas statute was uot subject to the objections to the Missouri statnte for the reason that it did not exclude Texas cattle; it merely made those who brought eattle into the State from Texas, hable for the damage caused by the disease which such cattle imparted to others. This lability was based on the theory that while it might not be known that such cattle were diseased when transported, it was known as stated in the Idaho ease. (State vs. Duekworth St > Pae. Rep. 406 at 458) “that Texas cattle are the natural habitat for said disease.”’

The Supreme Court of Idaho, in said Duckworth case, went farther and said, ettmg the decision in Welton vs. Missouri, 91 U.S. 275, (whieh held the law to be the same) that ‘‘it has been held that the non-exercise by Congress of its power to regulate commerce among the States is equivalent to a declaration by that body that sueh com- merce shall be free from any restriction. ’’

In conelusion, we inst that the law in question is un- constitutional on its face, beeause it provides for taking

property wichout due process of Taw.

30 Jesse M. Smith et al,

That the Proclamation is unconstitutional because it discriminates against and deprives citizens of the State of Utah the privilege of grazing their sheep on the public do- main of the Federal Governnient m the State of Idaho for the purpose of giving that privilege exclusively to citizens of the State of Idaho. It is also unconstitutional for the reason that it discriminates against and deprives citizens of the United States of the equal protection of the law. It is also unconstitutional because it gives the privilege of transporting sheep by rail into the State of Idaho, and de- nies to those unable to -1se the railroad, the privilege of transporting sheep into Idaho.

That both the Law and Proclamation and the actions of said Appellees are unconstitutional, for the reason that they violate the inter-state cominerce provisions of the Constitution of the United States.

That the actions of the Appellees are unconstitutional for all of the reasons above stated.

The Appellants, believing in the justice of their cause,

demand the reversal of the decision of the trial court.

JAMES H. MOYLE,

BROWN & HENDERSON,

LINDSAY R. ROGERS, Attorneys for Plaintiffs and Appellants.